UC Davis terminated employees during negotiations while other UCs transferred temporary workers to career positions

The Public Employment Relations Board has filed an official complaint on behalf of University Professional and Technical Employees (UPTE), a university labor union, alleging that UC Davis violated labor laws in its termination of contracted counselors during the summer of 2017. This is the second of recently filed complaints against the UC by the Public Employment Relations Board (PERB), a state agency which enforces the state’s labor relations statutes.

The termination of the counselors was explained in a previous article published in The California Aggie which acknowledged that the 10 employees were hired on a contract basis to temporarily satisfy under-met student mental health needs as part of a four-year initiative by the UC Office of the President.

As part of this initiative, UC Davis planned to hire 12 counseling psychologists using student fees. The university, however, hired temporary contract employees instead of full-time counselors.

In the meantime, counseling psychologists from all of the UCs were going through accretion negotiations to settle the terms of a new contract after becoming newly represented by UPTE.

The existing healthcare contract doesn’t provide for contracted employees, or employees who are at-will and can be fired at any time.

“The Hx contract does not have provisions for contract workers — the union is a firm believer that you don’t need contract workers, you hire people into career positions and if funding sources disappear then there’s provisions for layoffs,” said Jamie McDole, the vice president of UPTE.

Unlike many of the other UCs which transferred their contract workers to career positions, UC Davis terminated all the counseling psychologists who were contract workers while bargaining was taking place, McDole said.

“Part of the negotiations were the discussions that anyone who was on contract needed to be converted to a career position,” McDole said. “The other campuses did have contract workers and did convert them to either career or let their contracts run out if they didn’t have the work for it, but UC Davis decided to go ahead and terminate all the employees who were on contract.”

Margaret Walter, the director of health and wellness at UC Davis, said that “the decision to end the contracts early was related to budget,” in an article published by The Aggie in February. Both Walter and Cory Vu, the assistant vice chancellor for Divisional Resources declined The Aggie’s requests for comment for this article. Walter and Vu issued nearly identical responses via email:

“Given that litigation is pending, I must reserve any comment except to say that I respect the process and have full confidence in the university’s compliance with the applicable laws and policies,” Walter said via email.

According to McDole, UPTE’s charges against the UC include “bad faith bargaining” and “a violation of the terms for engaging in good faith.”

Felix de la Torre, the general counsel for PERB, discussed the way in which complaints begin to make their way through the internal workings of PERB. De la Torre said that the complaint begins in his division the Office of General Counsel, which reviews and investigates charges.

“If there are enough facts stated within the charge, which would eventually be proven true in a charge, we then issue a complaint,” de la Torre said. “This is what happened in this case: UPTE filed a charge and alleged a number of facts, and we took that and investigated it to see if there was enough allegations to support that there was a violation of state law by the Regents. The fact that we issued a complaint shows that our attorney who did the investigation found that the allegations were sufficient to state a violation.”

According to de la Torre, after a complaint is filed a conference is mediated between the two parties involved by a separate attorney than the one who investigated the initial charges.

“If the mediation is successful, those terms are implemented and the parties back away from this dispute,” de la Torre said. “If they don’t settle, we send it to the next division which is the division of administrative law. It has administrative law judges who function very similar to any judges in a court setting where they basically hold trials.”

De la Torre described concessions the terminated counselors can expect to see if both the UC and UPTE cannot come to an agreement during the mediation phase and if the administrative law judge rules in favor of UPTE.

“Generally, when you’re dealing with employees who are either laid off or let go with retaliation you’ll always get a back pay award and they’ll probably add legal interest to the amounts of the back pay,” de la Torre said. “There’ll be other what we call ‘make whole’ remedies, which are things like bringing up their seniority levels, making sure their vacations are restored, making sure any payments they had to pay out of pocket for healthcare are reimbursed. It’s trying to put the employee in a position he or she would have occupied had they not been illegally terminated.”